IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE &

THE HONOURABLE MR. JUSTICE S.MANU WEDNESDAY, THE 22^ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946 WA NO. 508 OF 2024 AGAINST THE JUDGMENT DATED 21.11.2023 IN WP(C) NO.41761 OF 2022 OF HIGH COURT OF KERALA APPELLANTS/RESPONDENTS 1,2,3 AND 5 IN WPC:

1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FINANACE (PENSION-B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695

001.

2 ACCOUNTANT GENERAL (A & E), OFFICE OF THE PRINCIPAL ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM-695039., PIN – 695 039

3 REGIONAL DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, HIGHER SECONDARY DEPARTMENT, PAYYAMBALAM, KANNUR DISTRICT-670003., PIN – 670

003

4 SUB-TREASURY OFFICER, OFFICE OF THE SUB-

TREASURY, PANOOR, KANNUR DISTRICT-670 692.

BY ADVS.

GOVERNMENT PLEADER PUBLIC PROSECUTOR RESPONDENTS/PETITIONER AND 4TH RESPONDENT IN WPC:

1 SURESH BABU P (RETIRED), AGED 61 YEARS S/O. BALAN KP, H.S.S.T (HISTORY) RETIRED, PADIKKALAKKANDIYIL HOUSE, THUVAKKUNNU POST, KOLAVALLOOR, KANNUR DISTRICT-670 693.

2 PRINCIPAL, KKV MEMORIAL PANOOR HIGHER SECONDARY SCHOOL, PANOOR, KANNUR DISTRICT-670692., PIN –

670 692 P.R. BABU SPL. GP FINANCE THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON

22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

J U D G M E N T

A. Muhamed Mustaque, J.

The issue in this matter is covered against the appellant-

State by Exts.P2 and P3 judgments of this Court. The State appears to have moved SLP before the Apex Court and the Apex Court dismissed the same. Thereafter, by an order, the Government clarified that the entitlement based on the judgments would be applicable only from the date of the dismissal order of the Apex Court and only those persons are entitled to claim benefit of Exts.P2 and P3 judgments after the dismissal of the SLP.

2. A substratum of the judgment cannot be whittle down by a Government Order. No doubt, the plenary power of legislation is available to change the very foundation of the judgment but not by way of a Government Order.

Having said so, we find that this is a matter having governed by previous precedent. The question that was considered is whether the additional day for the leap year has to be added for reckoning qualifying service for the pensionary benefits. That has been answered in favour of the Government servants. As already noted, the binding judgment would stare at the State and the State cannot now reopen such issue through a Government Order. Therefore, we dismiss this appeal in limine. But nevertheless, we observe that nothing prevents the State from resorting to the plenary power of legislation to change the foundation of law laid down.

Sd/-

A.MUHAMED MUSTAQUE JUDGE Sd/-

S.MANU JUDGE PR